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Civil Petition for Leave to Appeal No. 424‑R of 1985, decided on 21st December, 1985.

(From the judgment of the Lahore High Court, Multan Bencb, dated 27‑10‑1985 in R. S. A. No. 158 of 1984).

-----O. XVII, r. 3‑Order XVII, r. 3, C. P. C. when applicable.

Rule 3 of Order XV II, C. P. C. applied to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted.

Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PL D 1971 S C 434 reiterated.

Executive Engineer, Peshawar v. Messrs Tour Muhammad & Sons and 4 others 1983 S C M R 619 and Faiz Bakhsh v. District Judge, Multan and others 1983 C L C 2437 distinguished.

‑‑ O. XVII, r. 3‑Adjournments from time to time on account of initial request made by a party for a certain purpose and each time that request was deemed to have been notionally included in repeated order‑Such adjournments whether amounted to granting time to party at his request‑Such question if arose, held, might require further consideration.

Syed Tasleem Ahmad Shah v. Sajawal Khan etc. 1985 S C M R 585 ref.

Faiz Bakhsh v. District Judge. Multan and others 1983 C L C 2437 distinguished.

‑‑ O. XVII, rr. 3 & 5‑Adjournment when Presiding Officer on leave ‑ Duty Civil Judge, when relevant Presiding Officer was on leave passing adjournment order to the effect that and directing plaintiff not only to produce his evidence but also warning him that it would be the last date‑Word (therefore), playing signi ficant role in the order‑Reason for adjournment being absence of Presiding Officer who was on leave, adjournment, held, could not be said to have been granted at instance of any party‑Provisions contained in Order XVII, r. 3 were thus not attracted.

Bashir Ahmed Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Kh. M. Farooq, Advocate Supreme Court and M. A. Siddiqi, Advocate‑on‑Record (absent) for Respondents.

Date of hearing : 21st December, 1985.

Leave to appeal has been sought from judgment dated 27th October, 1985 of the Lahore High Court whereby a Regular Second .Appeal arising out of a civil suit filed by the appellant, was allowed and the case was remanded to the trial Court for further proceedings.

During the pendency of the suit the respondent‑plaintiff was allowed an adjournment on 29‑3‑1983 on payment of Rs. 200 as cost for production of evidence on 18‑4‑1983. On 18‑4‑1983 the Presiding Officer of the Court was on leave. The case was put up before another learned (duty) Judge, who further adjourned the case on account of the absence of the original learned trial Judge, on leave. This adjournment to 22nd of June, 1983 was also for the production of evidence .by the plaintiff‑respondent. It is noted in the order, dated 18‑4‑1983 that 22nd June, 1983 was the last dare and further that the cost directed on 29‑3‑1983 had already been paid. On the next date of bearing on 22nd June, 1983, the respondent plaintiff did not produce evidence, he requested for further adjournment which was refused and by the application of provisions contained in Order XVII, rule 3, C. P. C. his case was closed and thus accordingly the suit was dismissed for lack of evidence. This order was affirmed in first appeal. The second appeal before the High Court filed by the respondent‑plaintiff, was,, however, accepted on the main ground that the adjournmant granted on 18‑4‑1983 was not at the instance of the plaintiff‑respondent it was on account of the absence, on leave, of the Presiding Officer of the Court, therefore, the provisions contained. in Order XVII, rule 3 were not attracted ; because it was necessary thereunder that the relevant adjourn ment should have been sought by the party concerned.

Learned counsel for the petitioner has raised three arguments in support of this petition. Firstly, that it is not now necessary for the application of Order XVII, rule 3, that the time should have been granted by adjournment the case at the instance of the party concerned. He has relied on the following observation by this Court in Executive Engineer, Peshawar V. Messrs Tour Muhammad & Sons and 4 others (1983 SCMR 619) :‑

"It is immaterial whether the adjournment was granted at the instance of the party or for other reasons."

Learned counsel failed to appreciate the context in which the observation was made ; namely, that the party at whose instance the time was granted to perform a certain act was not only a defaulter in that behalf but had also absented himself. In the circumstances of that case, the absence of the party was not to be ignored and this, it was noted that the fact that adjourament was not granted at its instance will not make any difference. The additional factor being the absence of the party itself, that case is thus clearly distinguishable. The law was laid down by this Court on the question raised by the learned counsel more than a decade ago in Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (P L D 1971 S C 434) as follows :‑

"that this rule (rule a of Order XVII, C. P, C.) applied to a case where time has been granted to a party at his instance, to produce evidence or to cause the attendance of witnesses or to perform an other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted."

This view has been reiterated in many other cases. There is mass of case law from other superior Courts on the point, that is why, learned counsel ultimately agreed that the point he was raising was against the consensus for the last nearly 100 years and that he bad raised the same only on, account of the observation made in the case of Maulvi Abdul Aziz Khan which has been explained above. Therefore, there is no force in the first point raised by the learned counsel.

Secondly, he contended that on. an occasion earlier than the last date of adjournment i. e. 18‑4‑1983 the case had in fact been adjourned at the instance of the respondent‑plaintiff, therefore, relying on Faiz Bakhsh v. District Judge, Multan and others (1983 C L C 2437) he contended that it did not make any difference that on the said date i. e. 18‑4‑1983 the adjournment was granted not at the instance of the respondent but for another cause, namely, the absence of the Presiding Officer.

It is not necessary to examine this point in detail because there is factual distinction between the two cases. If a case is being adjourned from time to time on account of an initial request made ‑by a party for certain purpose and each time that request is deemed to have bee notionally included in the repeated order the case might be different and i might require fuller examination. And in that eventuality the observation made by this Court in Syed Tasleem Ahmad Shah v. Sajawal Khan etc. (1985 S C M R 585) would be relevant, and in that case, the resolution of the controversy raised by the learned counsel for the petitioner might go against him. But in this case even if earlier the case was adjourned at the instance of the respondent‑.plaintiff. the adjournment granted on 18‑4‑1983, it cannot be denied was on account of the absence of the Presiding Officer, There fore, there is no force in the second contention either,."

Thirdly, the learned counsel relying on rule 5 of Order XVII which relates to an adjournment when the Presiding Officer is absent and a ministerial official is to issue a slip of paper specifying the next date, contended that the adjournment granted on 18‑4‑1983 was not strictly speaking, under rule 5, Order XVII ; because the ministerial official instead of issuing the slip of adjournment placed the case before a Duty Civil Judge who passed the order of adjournment. Hence it should not have been treated as an adjournment granted on account of the absence of the Presiding ‑Officer. And because the adjournment still remained to be for

purport of production of evidence by the respondent plaintiff it should be held that it was at his instance.

On the question of interpretation of the order, dated 18‑4‑1983, is not possible to agree with the learned counsel for the petitioner. The following words and expression used in the said order are significant:

This shows that the word (meaning "therefore") plays a significant role in the order. The reason for adjournment was the absence of the Presiding Officer who was on leave. It is a different matter that while adjourning the case the plaintiff was directed not only to produce his evidence on the next date but was warned that it would be the last date. Looked at from whatever angle the adjournment on 18‑4‑1983 for 22‑6‑1983 was not, therefore, at the instance of the plaintiff‑respondent.

None of the arguments advanced by the learned counsel for the, petitioner has any force, leave to appeal is accordingly refused.

M. H. A. Leave refused.

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